A restaurant that allows an intoxicated patron to leave with sober companions may not be liable for over-serving the patron.

A restaurant joined as a third party by the Defendant insurance company sought a summary judgment under Rule 22 of the New Brunswick Rules of Court. Granting the motion the judge held that based on the evidence the restaurent had fulfilled the requirements placed on a commercial host under the circumstances and did not see any reason to doubt the claim against the restaurant would be dismissed at trial.

Feaver Estate v. Briggs, [2009] N.B.J. No. 371, November 12, 2009, New Brunswick Court of Queen's Bench, D.H. Russell J

Feaver was struck by a car driven by Briggs after leaving a party held at the third party's restaurant. The Defendant, Unifund Assurance Company, joined the restaurant alleging they were liable to the deceased in that they allowed him to consume alcohol, and become intoxicated to the extent that he was unable to ensure his own safety.

The Feavers attended a staff party at the restaurant where, in her affidavit, Mrs. Feaver said her husband consumed approximately six beers during the evening, and was feeling good but was not drunk. Blood samples taken from Mr. Feaver suggested he had consumed closer to 18 to 20 bottles of beer during the evening.

The restaurant owner's affidavit also stated that Mr. Feaver appeared fine and did not display any visible signs of intoxication when he left. Mr. Feaver left in the company of his wife and another couple, who were responsible for him. The restaurant owners knew the group were going to walk to a nearby restaurant along a sidewalk, and that they were going to be driven home by a group called Operation Red Nose after leaving the second restaurant.

The judge held that Unifund could argue the third party restaurant owners should have known Mr. Feaver had consumed up to 18 beers despite the assertion of Feaver's wife that he had four to five and lacked signs of intoxication. However, even if Feaver was visibly intoxicated, the third party owners knew he was in the hands of three other people, including his wife, that he was going to be walking along a sidewalk adjacent to their establishment, and that he was to be driven home at the end of the evening. On the strength of that evidence the judge felt that there was no foreseeable risk to Mr. Feaver when the third party owners allowed the group to walk to the other restaurant, and as a result the claim against the third party would be dismissed at trial. The judge granted the summary judgment against the Defendant Unifund Insurance under Rule 22.

This case was originally summarized by Neil J. MacDonald and originally edited by David W. Pilley.

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